No One has the Right to Override the Constitution

Chairman Johnson and Members of the House Military and Veterans Affairs Committee. Thank you for the opportunity to testify in support of HCR41. My name is Scott Landreth and I represent the Ohio Chapter of the Tenth Amendment Center.

HCR41 is a critical, overdue step towards protecting the rights of Ohioans from federal overreach.

The resolution “…condemns in no uncertain terms Section 1021 of the National Defense Authorization Act for Fiscal Year 2012” which, among other things

“authorize(s) the President of the United States to utilize the armed forces of the United States to police United States citizens.”

“authorize(s) the indefinite detention without charge of United States citizens.”

“subject(s) American citizens…to military tribunals.”

authorizes the “transfer (of) American citizens captured within the United States to a foreign country.”

The resolution is absolutely correct in pointing out that the indefinite detention provision of the NDAA is an egregious violation of the Constitution, in addition to a violation of basic civil rights which are a part of our heritage. In short, the NDAA purports to give the President king-like powers.

With this legislation the federal government is indeed, as HCR41 states, violating the First, Fourth, Fifth and Fourteenth Amendments, amendments designed to prohibit the federal government from taking the exact type of action that the 2012 NDAA authorizes.

HCR41 draws upon another part of the Bill of Rights, the Tenth Amendment, which states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The Tenth Amendment gives the states a role, the primary role, in determining the constitutionality of federal law. The individual states are, as James Madison said, “duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”

It is in this spirit that HCR41 condemns the indefinite detention provisions of the NDAA. HCR41 rests on the American ideal of self-government and divided authority.

As foreign as these concepts may seem to be to many people today, they flow from the very structure of the Constitution, which clearly delineates the scope of the federal government’s powers. The Constitution was designed in such a way that, as founding father Roger Sherman said, “when the government of the United States…interferes with the rights of the State governments they will be powerful enough to check it.”

Alexander Hamilton elaborated on this point when he said that any “acts of the (federal government) which are not pursuant to its constitutional powers…will be merely acts of usurpation, and will deserve to be treated as such.”

What’s more, this kind of condemnation of unconstitutional federal laws has a long history, beginning with the Kentucky and Virginia Resolutions of 1798 which condemned the federal government’s violations of the First Amendment. What’s more, there is a proud tradition of not just condemnation, but outright resistance to unconstitutional laws right here in Ohio.

In 1819, Ohio imposed a tax on the federally chartered Bank of the United States. The Supreme Court had already ruled that such taxes were unconstitutional in McCulloch v. Maryland. However, despite the Supreme Court’s decision, an agent of the Treasurer of Ohio seized $100,000 from the Bank to satisfy the tax. Ohio’s legislature passed resolutions declaring that it did not accept the result of the McCulloch case and denying that the Supreme Court had the final authority to interpret the Constitution. The Ohio legislature’s resolutions asserted that the states “have an equal right to interpret that Constitution for themselves.”

In 1857, the Ohio legislature passed An Act to Prevent Kidnapping in response to The Fugitive Slave Act of 1850 – one of the most despicable acts ever passed by Congress. This so-called law denied any person accused of being a runaway slave any semblance of due process. Under the Ohio law,“Forcibly or fraudulently carrying off” a free black person would get you three to eight years of hard labor. Anybody trying to take an escaped slave out of Ohio was subject to the same charges if they failed to go to the proper court and prove “ownership.” Many northern states passed similar laws, which infuriated southern slaveholders and led directly to freedom for many escaped slaves.

HCR41 continues this courageous tradition and recaptures the spirit of the Constitution and the American Revolution in which the state governments held the primary role in maintaining constitutional fidelity.

Adherence to the Constitution is not a partisan issue. The rights protected by the Constitution are important to all Ohioans, Democrats, Republicans and Independents. The sponsorship of HCR41 reflects this truth as both Democrat and Republican sponsors have recognized the dangers posed by indefinite detention and have risen to condemn its use at the federal level.

No single person nor any group of people has the right to override the Constitution, as the indefinite detention provision of the NDAA purports to authorize. Whether a Republican or a Democrat is in office is immaterial. The ability of the President of the United States to determine that someone can be help without charge is as dangerous in the hands of Barack Obama as it was in the hands of George W. Bush.

It is ultimately the responsibility of the Ohio state government to ensure that its citizens are protected from this kind of federal overreach. The founding generation was very clear on this point. If the federal government is permitted to violate its own laws, what protection is there for the rights of any of us?

Chairman Johnson and members of the committee, thank you once again for giving me the opportunity to testify in support of this important resolution. I want to thank the sponsors Rep. Jim Butler and Rep. Ron Young as well and respectfully urge you support HCR41.

Scott Landreth is the Ohio Chapter Coordinator for the Tenth Amendment Center, a national think tank that serves as a forum for the study and exploration of state and individual sovereignty issues, focusing primarily on the decentralization of federal government power as required by the Constitution.Send him e-mail to scott.landreth@tenthamendmentcenter.com.